INTRODUCTION

5.1 The three options presented below are intended to focus discussion and debate about the regulation of the legal profession. These are not the only possible options, of course, but have been selected, having regard to the terms of reference, to offer three realistic avenues for reform incorporating different models of regulation. The Commission has no preferred option at this time and makes only tentative proposals. No conclusion should be drawn one way or the other, for example, from the length of the discussion of Option One as against the length of the discussion of the other two Options. Obviously it is easier to critique an existing system in fine detail than to describe in equal detail the nature and potential flaws in an inchoate system. However, we do wish to make explicit our view that it is not an option to do nothing, given the range of problems mentioned in the submissions and identified by the Commission’s own research.

5.2 The time constraints and the limited resources available have precluded the sort of empirical work, research, and travel which might have allowed the Commission to develop its views more fully at this stage. Depending upon the results of the Commission’s further research and community consultation, we will ultimately report to the Attorney General recommending one of these options - possibly in a modified form - for implementation.

OPTION ONE: IMPROVEMENT OF THE EXISTING LEGAL PROFESSIONAL DISCIPLINARY SYSTEMS

Assumptions and general principles

5.3 The submissions from the legal professional associations - the Law Society and the Bar Association - both assert that the existing disciplinary system putin place by the provisions of the Legal Profession Act 1987 are generally working well, but that there are a number of areas in which improvements could be affected. For example, the New South Wales Bar Association's submission to the Commission concludes that:

The Legal Profession Act brought about a radical change in procedures. Some fine-tuning is usually necessary when new procedures are adopted. That is the situation here. The system is working well and with the changes in progress and proposed would be very effective indeed.¹

Similarly, the Law Society Council’s submission to the Commission states that “The Society is not aware of any significant level of criticism of the way in which the Society discharges its functions under Part 10 of the Act”,² but the submission also contains several significant proposals for restructuring the system in relation to the handling of complaints against solicitors. This Option proceeds from the assumption that the existing complaints system is generally working in a satisfactory manner and should be retained, but that a number of changes need to be made in light of the experience of lawyers and clients in the past few years and the Commission’s analysis of the system contained in the preceding chapter.

5.4 From the time of its earliest work on the legal profession over a decade ago, the Commission has noted the arguments about the possibility of an inherent conflict present in a single body having simultaneous responsibility for advancing the interests of its membership (the “sectional” or “trade union” function) as well as regulating and disciplining that membership in the public interest, and the consequent need for, at the least, a clear separation of the administration of those two functions.³ This point is raised again in a number of the submissions to the Commission in the current inquiry. For example, much of the submission of the Lawyers Reform Association is devoted to this issue, with the Association concluding that:

There is an inherent conflict of interest in the Law Society and the Bar Association simultaneously maintaining representative and both statutory and non-statutory regulatory functions. The community cannot be expected to have confidence in the regulation of the profession and the investigation of complaints while these dual roles continue.⁴

5.5 Within the central assumption contained in this Option - that the profession should largely retain its leading role in the disciplinary process - the Commission proposes that sufficient “Chinese Walls” be developed to re-assure the public that sectional interests are not given prevalence over the public interest. This may involve such physical separation as is appropriate and logistically sensible, and will certainly involve a separation of the management and administration of the two functions, with guarantees of independence for those responsible for regulatory activities.

5.6 The Commission has had the opportunity to observe first-hand the system in operation, including the deliberations of the Law Society’s Complaints Committee and the Law Society Council. The Commission has been greatly impressed by the high levels of integrity demonstrated by, and by the frankness of the discussions conducted among, the participants in the system. Apart from a small number of salaried employees, the disciplinary system largely operates on the basis of volunteer labour, and there are some lawyers and lay persons who have made very substantial time commitments to the system. Without doubting the sincerity or integrity of the principal actors, the Commission has nevertheless identified a range of significant problems with the existing system which require reform, and which are discussed below.

The reception of complaints

5.7 The initial step in the complaints-handling process may well be the most important, especially from the point of view of the complainant. Persons making complaints must be assured that their problems will be handled promptly, efficiently, sensitively and impartially. Below, we list a number of suggestions for improving services at the (actual or metaphorical) “front counter”.

Access to information

5.8 The Explanatory Brochures. Both the Law Society and the Bar Association produce an “Explanatory Brochure” for persons who are considering lodging complaints. The brochures, which are very similar in content and layout, describe the disciplinary system in rather dry and technical legal language, often lifted directly from the relevant provisions of the Legal Profession Act 1987. The Law Society brochure occupies four pages of single-spaced material, the Bar Association’s six pages of mainly double-spaced material. Neither brochure refers to the fact that the Act requires the professional associations to “take all reasonable steps to ensure that a person who wishes to make a complaint is given such assistance as is necessary to enable the person to make the complaint in accordance with [the statutory requirements]”,⁵ yet this could be the single most valuable piece of information for prospective complainants.

5.9 Similarly, there is no clear statement in either of the brochures to the effect that “If you have any questions or problems at all, please contact us at once”. It may be that many members of the community can cope with the level of detail and complexity found in the brochures, but many others will find them rather intimidating. While some complaints come from other lawyers, public officials, judges and court officials, and other “insiders”, the great majority of complaints come from clients or former clients.⁶ The brochures should be re-focussed so that they look and read less like legal documents and more like simple advice in “Plain English” on what to do and how to get help.

5.10 Assistance to non-English speakers. At present, neither the Community Assistance and Professional Conduct Departments of the Law Society nor the Professional Affairs Director of the Bar Association has the facilities to communicate effectively with or provide advice to a person with a limited grasp of the English language (whether this a person from a non-English speaking background or a person with disabilities affecting his or her comprehension or expression). According to the Bar Association submission,⁷ the Bar is planning to produce its explanatory brochure provided to complainants in five languages. The Law Society has notified the Commission of its intention to produce its literature in 20 languages. As noted in the previous chapter,⁸ however, the production of brochures should not be regarded as fully satisfying the requirement to assist complainants. Thought must be given to methods of dissemination of information in ways that will actually reach the target groups. Interpreter services must be reasonably available to assist individual complainants.

5.11 Community education. Steps should be taken by the professional associations to ensure that the community is regularly made aware of the existence and general nature of the complaints system. This will involve greater use of paid and “community service” advertising in the print and broadcast media and other marketing techniques, as well as the production of appropriate literature. Literature should be made widely available, including by prominent display at solicitors’ offices and barristers’ chambers, community justice centres, community health centres, community legal centres, courthouses, and the head offices of the legal professional associations.

Record-keeping and follow-up

5.12 The statistics relating to complaints about lawyers used in this Discussion Paper were provided to the Commission by the professional associations and by the Registrar of the Disciplinary Tribunal,⁹ and are limited to those complaints made formally in writing in compliance with s130 of the Legal Profession Act 1987 and the smaller number of investigations initiated by the professional associations on their own motion.¹⁰ The statistics provide no indication of the number of potential complainants who make initial contact but do not follow this up with a written complaint for one reason or another, however. The Community Assistance Department and the Professional Conduct Department of the Law Society, and the Professional Affairs Director of the Bar Association, do not keep detailed records of telephone calls to, or personal attendance at, their offices by persons who may wish eventually to complain about the conduct of a legal practitioner.

5.13 This approach contrasts with that of the Complaints Unit of the New South Wales Department of Health, which does carefully record all inquiries made by telephone or in person. There are several good reasons for preferring the latter approach. The initial recording allows for follow-up, after a time, in those cases in which there appeared to a problem of some significance but a formal, written complaint providing full particulars has not been lodged. The Health Complaints Unit has decided that this issue is so important that it has reorganised its operations in recent times to dedicate more resources to the initial intake and follow-up phases of their complaints-handling procedures. This has involved the development of the necessary computer software to track complaints, the use of more senior staff at the initial stages, and regular meetings of staff to consider follow-up.

5.14 Although the Act does require the Councils of the Law Society and the Bar Association to “take all reasonable steps to ensure that a person who wishes to make a complaint is given such assistance as is necessary to enable the person to make the complaint”¹¹ in accordance with the specified formalities, and help is in fact provided to those who request it, there is no active pursuit of potential complainants by Law Society’s Community Assistance Department or Professional Conduct Department, or the Bar Association’s Professional Affairs Director. There are many reasons why people may fail to follow up their concerns about a lawyer’s conduct with a formal complaint. These include: the perception (correctly or incorrectly formed) that they were treated unsympathetically when they made the initial contact; the inability or unwillingness to put things in writing; the lack of opportunity to make use of the complaints assistance services provided during working hours; uncertainty over costs; or a sense of futility in complaining about a lawyer to that lawyer’s professional association.

5.15 The statutory requirement to take “all reasonable steps” to assist complainants should involve a proper system of recording, monitoring and following up initial contacts from potential complainants. Further, if there is to be increased use of mediation and conciliation, as suggested by both the Law Society and Bar Association, then persons who contact the professional associations with complaints should be encouraged to participate in these informal dispute resolution processes even where the complaint does not raise obvious issues on its face of unsatisfactory professional conduct or professional misconduct.

5.16 Apart from facilitating the effective processing of individual complaints, this approach also provides far more information about the general pattern of complaints, which is ultimately useful for developing policies and strategies aimed at preventing disputes and raising the standards of professional conduct and ethics. (See the discussion of “Enhancement of professional standards”, in Chapter 4.)

Independence from the professional associations

5.17 As mentioned above, the Commission is aware of the general issue of the conflict in the dual roles of the professional associations.¹² The fact that a complaint about a lawyer must be made to that lawyer’s professional association may have the effect of dissuading some dissatisfied clients and others from lodging a complaint. The American Bar Association’s Commission on Evaluation of Disciplinary Enforcement has characterised this as “the familiar criticism that the fox is guarding the henhouse”, which, given the level of public distrust, is likely to be levelled even where the disciplinary system is in fact “fair to both respondents and complainants”.¹³

5.18 This problem is addressed more directly in the other two Options presented below. However, there are some steps which may be taken to reinforce the actual and perceived independence of the complaints-handling system even if control is retained by the professional associations. For example, the head of the Community Assistance Department and the Manager, Professional Conduct, of the Law Society, as well as other significant staff members, could be appointed by a committee with broad representation - including non-lawyers - rather than by the Law Society Council.

5.19 It is most important that a “culture” of independence develop such that complainants believe that they are being taken seriously and that the system is not weighted in favour of lawyers. This may be somewhat difficult to do where the staff members involved are employees of the Law Society or Bar Association and have been for some time, but it is not beyond reach if the message comes through clearly from the top. One way to emphasise this would be to quarantine the administration of the regulatory responsibilities of the professional associations from the associations’ membership responsibilities.

5.20 The independence of complaints-handlers also may be reinforced - in their own minds as well as in the perception of the public - if there was a physical separation from the head offices of the respective professional associations. This is the case in England and Wales, where the Solicitors’ Complaints Bureau is housed separately from the offices of the Law Society.¹⁴ In New South Wales, the Community Assistance and Professional Conduct Departments are both housed within the Law Society Building. The Community Assistance Department has a separate telephone number from the Law Society’s central switchboard, but is listed under “The Law Society of New South Wales” in the telephone book and is routinely referred to as the “Law Society’s Community Assistance Department”. Any distinction is likely to be lost on potential complainants, even if they are aware of the role of this Department in the complaints system.

The initial assessment of complaints

Introduction

5.21 At present, when a formal complaint is made about a solicitor, the Law Society’s Community Assistance Department forwards the complaint to the Law Society’s Professional Conduct Department. The Professional Conduct Department then categorises the complaint according to its view of the level of seriousness, and commences its investigations by writing to the complainant and the solicitor(s) involved.¹⁵ There is no lay participation in the process at this stage. When the Department ultimately compiles its report on the matter, this is sent to the Law Society’s Complaints Committee, to which the Law Society Council has delegated its powers of investigation under the Act.¹⁶ The Complaints Committee, which must be presided over by a member of the Council, does have two lay members (and eight solicitors).

5.22 A complaint about a barrister is first received by the Bar Association’s Professional Affairs Director, who forwards it to one of the four Professional Conduct Committees (depending upon the workload of each of the committees) which operate under delegated authority from the Bar Council. Given the much smaller number of complaints against barristers, there is no initial assessment of the nature or relative merits of each complaint before the matter is sent to the Committee. Each Professional Conduct Committee consists of 7-9 members, and includes at least one member of the Bar Council, a number of barristers of varying degrees of seniority, and two lay members.¹⁷ The Committee itself undertakes the investigation, usually through one or two of its members, and in liaison with the Professional Affairs Director.

5.23 The nature and sufficiency of the investigation of complaints is a key matter which is considered in more detail below. There are a number of other matters in respect of the first assessment of complaints, rather than the ensuing investigation, which are worth discussing here.

Imposition of a time discipline

5.24 According to the figures supplied by the Law Society, the average “turn around time” for investigation of a complaint against a solicitor (being the average time between receipt of a complaint and its settlement, withdrawal or resolution by the Complaints Committee or Council) was 5.1 months in 1988, 5.3 months in 1989, and 4.6 months in 1990.¹⁸ According to the figures supplied by the Bar Association, the average turn around time for the investigation of complaints against barristers was 6.3 months in 1988, 7.8 months in 1989, and 5.4 months in 1990. This does not take into account the time taken for any further proceedings which are necessary, such as proceedings before the Standards Board or the Disciplinary Tribunal, or any reviews which are held by the Conduct Review Panel. These are average figures - some investigations no doubt move more expeditiously, while others move rather more slowly.

5.25 The professional associations recognise the problem of delay, and have taken some steps to speed up the process. At least some of this problem may be due to the absence of any time discipline imposed by the legislation. The Act provides that, for the purposes of seeking external review by the Conduct Review Panel, a complaint may be deemed to have been dismissed by a Council if a decision has not been made within six months after the making of the complaint.¹⁹ This strongly suggests that it was contemplated by Parliament that the process of investigation and determination by committees and Councils would normally be completed within this time frame. However, the Act does not expressly require the Councils to act within any particular time limit, or even to act expeditiously.

5.26 It is standard practice in respect of complaints against both barristers and solicitors that the subject of the complaint is written to, with a copy of the complaint, and a reply is requested within 14 days.²⁰ There is no specific statutory penalty for failure to respond within this time limit, however, and the Commission gathers that it is not uncommon for responses to be late and for some to be very late. The Commission is aware of individual cases in which the investigative process was delayed for lengthy periods - sometimes over a year - due to the failure of the lawyer involved to respond, or respond in a meaningful way, despite numerous letters from the professional association. As mentioned above,²¹ the Law Society warns complainants in its Explanatory Brochure that the failure to provide further particulars within one month of a request may result in the dismissal of the complaint, yet practitioners are not placed under a reciprocal obligation.

5.27 In Victoria, a legal practitioner is also asked to respond to a complaint within 14 days.²² If no response is received in that time, a second letter is sent. Failure to reply to this letter within seven days is itself considered a “standards breach”, and often results in a fine for the practitioner as well as the recording of a standards breach, which is equivalent to “unsatisfactory professional conduct” in New South Wales. A similar requirement should be imposed under the legislation in this State.²³ A persistent failure to respond to a complaint, or a pattern of persistent delay in responding to complaints, should result in the suspension of the legal practitioner’s practising certificate.

5.28 The Law Society Council - but not the Bar Council - has the statutory power to cancel, suspend, or refuse to issue, a practising certificate to a legal practitioner who has been asked by the Council to “explain specified conduct” and fails, and continues to fail, to give a satisfactory explanation.²⁴ The Law Society Council has adopted the procedure of passing a resolution seeking an explanation for the lack of response to the Society’s correspondence, and adverting to its powers with respect to practising certificates. The Law Society has informed the Commission that the communication of this resolution is usually “very effective” in producing a response.²⁵ Since the introduction of the Legal Profession Act, the Council has passed 131 such resolutions, with only five practising certificates ultimately cancelled for continued failure to reply. This power ought to be retained and extended to the Bar Council in respect of barristers.²⁶

Substantive problem areas: the gap between what lawyers and clients believe is important

5.29 One of the clearest problems to emerge in the Commission’s earlier work on the legal profession was the profound gap between what angered clients and what lawyers and their professional associations saw as important enough to merit disciplinary action. Clients most frequently complained about matters of negligence, incompetence, delay, poor communications, discourtesy and over-charging, while the professional associations almost never considered that these matters amounted to “professional misconduct”.²⁷ In response to this criticism, the Law Society Council passed a resolution, which it issued as a Special Bulletin to solicitors, which “reminded” solicitors that acting for a client in a matter: (1) with “culpable irresponsibility”, or (2) with “gross negligence”, or (3) incompetently, or (4) with undue delay or failure to keep the client informed, could amount to professional misconduct.²⁸

5.30 The solution to the disjunction between consumer and professional expectations then proposed by the Commission, and eventually contained in the Act, was the creation of a second head of “minor professional misconduct”, later amended to “unsatisfactory professional conduct”,²⁹ which is defined as “conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner”.³⁰ The Commission also recommended, and the Act established, a Legal Profession Standards Board to hear complaints about unsatisfactory professional conduct, while more serious complaints involving professional misconduct are heard by the Legal Profession Disciplinary Tribunal.

5.31 It is still the case that the substantial majority of complaints involve allegations of what would, at most, amount to unsatisfactory professional conduct if proved. There still appears to be a substantial gap between the expectations of at least some clients and complainants on the one hand, and at least some lawyers and their professional associations on the other.

5.32 For example, according to figures supplied by the Law Society, there were 1245 written complaints against solicitors in 1990.³¹ Of these, at least 80 per cent seem to relate to issues of unsatisfactory professional conduct: 264 complaints of undue delay; 37 for discourtesy; 254 for negligence or quality of work; 79 for poor communications; 104 involved allegations of overcharging; and 256 related to conduct or standards breaches. Yet only 12 matters (1% of the total number of complaints) were referred to the Standards Board by the Law Society Council, while most of the rest were dismissed by the Complaints Committee with no action taken against the solicitors involved.

5.33 Given the small number of complaints involved, the Bar has taken the approach that all written complaints will be passed from the Professional Affairs Director to the Professional Conduct Committees (PCCs) for investigation without any screening at this stage. The PCCs have the power, under delegation from the Bar Council, to dismiss complaints which are frivolous or vexatious, or where the complainant fails to provide further particulars as requested. However, as a matter of practice, this screening power is not used and all complaints, together with the investigative report, are forwarded to the Bar Council for determination. Nevertheless, while complaints about such matters as negligence, poor communication, poor attitude, delay, discourtesy, failure to appear, and the exerting of undue pressure amount to about half of all complaints received (42 out of 84 in 1990; 40 out of 81 in 1991), only a handful of complaints (3 in 1990, 2 in 1991) are referred by the Bar Council to the Standards Board for a hearing.³²

5.34 These statistics³³ suggest, then, that the new legislation has not been entirely successful in getting the professional associations to regard unsatisfactory professional conduct as a matter of sufficient seriousness to warrant formal hearing. This may be a reason for public scepticism about the control of the disciplinary system by the professional associations, since complainants could perceive that their concerns are not being addressed. This is an area in which there is an important need for empirical research to be undertaken, but the Commission has not been able to do this work itself because of time and funding constraints.

5.35 Allegations of professional negligence. One area of special concern is the apparently inconsistent treatment of allegations of professional negligence by solicitors. Over 20% of the formal complaints to the Law Society and roughly the same proportion of complaints to the Bar Association alleged negligence or poor standards of work. As noted above, this also was a concern of the Commission in its earlier work on the legal profession. At that time, the Law Society made a submission to the Commission which stated that:

It has been accepted for many years that the Law Society has no power to discipline a solicitor for mere negligence or delay on his part. [Emphasis supplied.]

Following some controversy over this position, the Law Society issued its Special Bulletin in 1979 affirming that “gross negligence”, “incompetence” and “undue delay” may amount to professional misconduct.

5.36 Despite the Commission’s earlier recommendations, the Special Bulletin, the statutory creation of a second head of “unsatisfactory professional conduct” in the 1987 Act, and the ability of disciplinary bodies to make compensation orders, it is the Commission’s observation that there is still a substantial degree of ambivalence in the professional Councils about whether negligence should be the subject of disciplinary action. The view seems to be, at least among some members of the professional Councils and their complaints committees, that only a pattern of negligent conduct, or perhaps a particularly outrageous single instance, merits a disciplinary sanction. “Mere negligence”, according to this view, is remedied by compensation and is a matter for the civil courts rather than disciplinary bodies.

5.37 There is a double problem for complainants here. The first problem is in getting the complaint accepted, as there is some anecdotal evidence that prospective complainants who make inquiries about lodging a complaint based on negligent conduct are advised that the better course is to pursue a civil action. The second problem is in getting the investigators, complaints committees and Councils to treat such complaints as raising issues of public importance which require the disciplinary action.

5.38 The New South Wales Court of Appeal has ruled that clients are entitled to rely upon at least a minimum standard of competence from a licensed legal practitioner, which includes a basic knowledge of the law and practice, and familiarity with developments in the lawyer’s field of practice (including ethical requirements).³⁴ Unless allegations of negligence are brought to the attention of the disciplinary authorities, it is impossible to monitor the standards and conduct of individual practitioners, who are held out to consumers as persons of integrity and skill by the professional associations (who issue practising certificates for this purpose) and the courts (who have inherent powers to regulate the legal profession). Further, if the disciplinary authorities do not concern themselves with individual matters of negligence, it becomes impossible to detect more general patterns of poor practice in the profession, which might require continuing education, changes in the law, ethical rulings or other remedies. The isolated nature of an act of professional negligence and mitigating circumstances going to the lawyer’s normal standards or character are matters to be taken into account in disposition, rather than matters precluding referral to a disciplinary body which may proceed to a finding.

5.39 Complaints by persons who are not clients. The Commission is aware of a small number of cases in which prospective complainants have been told by the Law Society’s Community Assistance Department (and at least one case in which it was confirmed in writing) that a person may not make a complaint against a solicitor unless the person was a client of that solicitor. Leaving aside the fact that this is obviously not the case in respect of complaints lodged by other lawyers, judges, or court officials, it is also clearly wrong in respect of other prospective complainants. Under the Act, a complaint may be made by “any person who considers that a legal practitioner is guilty of professional misconduct”³⁵ (emphasis supplied). There is no reason in law or in policy to limit the class of complainants to those who are in a client-lawyer contractual relationship with the lawyer who is the subject of the complaint. On the contrary, the need to maintain proper standards of professional practice and demeanour requires that, as the Act provides, any person be entitled to bring to the attention of the professional associations evidence of dishonesty or substandard professional conduct. Part of the confusion in this area may stem from the fact that the Law Society’s “Explanatory Brochure to the Complainant” commences its advice on how to make a complaint with the following phrase: “If you have a complaint against your solicitor, you should first consider going to another solicitor for help in sorting out the problem ...” (emphasis in the original). This is not intended to restrict the category of complainants, but it could be read in that way. The Law Society has assured the Commission that whereas in past years there may have been some reluctance to accept “third-party” complaints, this is no longer the case and all complaints are treated on the merits.

Conclusion

5.40 As we have pointed out repeatedly in this Discussion Paper, the disciplinary system has multiple aims: to remedy the genuine problems of consumers, to sanction individual legal practitioners for poor work, and to maintain and enhance the general standards of competence and propriety in the legal profession. The public interest is not being served unless all three aims are pursued with equal vigour.

Additional, informal dispute resolution

5.41 In the previous Chapter,³⁶ the Commission referred to the development of a voluntary scheme by the Law Society to mediate lawyer-client disputes, the Law Society’s proposals for extending this scheme to make it a central part of the complaints-handling system, and the proposal of the Bar Association also to incorporate informal dispute resolution into its complaints-handling system. While generally accepting the trend towards the introduction of consensual dispute resolution, the Commission also expressed some concerns and qualifications, particularly in relation to the need to maintain the dual nature of the disciplinary system (individual complainant satisfaction and the general public interest in the maintenance of proper professional standards); the imbalance of power and knowledge which may occur in a mediation process involving lawyers and clients; and the need for independent, trained mediators.³⁷

The investigation of complaints

Complaints against solicitors.

5.42 The principal responsibility for the investigation of complaints against solicitors lies with the Law Society’s Professional Conduct Department. The Department has a salaried staff of ten lawyers and six support staff, under the supervision of a full-time Manager (who is a solicitor),³⁸ and operates on a budget of $2.6 million per annum, not including the cost of investigators, inspectors, auditors and receivers who may be appointed from time to time. Generally, a complaint is assigned to one of the legal officers in the Department, who prepares a report containing a recommendation about what action (if any) should be taken. This report is then sent to the Law Society’s Complaints Committee, which operates under delegated statutory authority from the Law Society Council.³⁹ The members of the Law Society’s Complaints Committee are volunteers, who fit their disciplinary responsibilities in and around their own busy practices (in the case of the legal members), careers (in the case of the lay members), and other responsibilities. One or more legal members of the Committee is assigned to review and comment upon the report before the matter is heard by the full Committee.

Complaints against barristers.

5.43 With complaints against barristers, the matter is referred by the Professional Affairs Director directly to one of the four Professional Conduct Committees, which act under delegated authority from the Bar Council. Each matter is assigned to one of the legal members to prepare a report for consideration of the full Committee. These Committees also are comprised of volunteers who perform their regulatory duties part-time, in addition to running their own practices. The speed at which an investigation proceeds is contingent upon the time and the availability of the Committee member (who may, for example, have to go on circuit to country courts) and the cooperation of the barrister who is the subject of the complaint (and possibly other persons with material evidence, such as solicitors and judges). The Bar Association has given its Senior Vice-President the responsibility for monitoring the whole process for delays.

The mode of investigation.

5.44 In its earlier inquiry into the legal profession, the Commission was critical of the inadequacy of the investigation of complaints by the professional associations, condemning, for example, the “perfunctory investigation of many complaints”.⁴⁰ One of the main concerns at that time was that the professional associations relied very heavily on the information provided by the complainant to determine the validity of the complaint, often making a final decision on this basis without further investigation. If the investigation proceeded the next step was to contact the lawyer concerned for a reply. In the not infrequent event that the matter hinged on the word of one party to the dispute against the word of the other, the lawyer was generally given the benefit of the doubt without the matter being referred for a formal hearing.⁴¹

5.45 Some of the submissions in the current inquiry question whether the investigation of many matters is adequate to define all of the possible issues and to ascertain all of the relevant facts, particularly in relation to the far more numerous complaints against solicitors. The chief technique employed in most cases for compiling the facts and preparing the report and recommendations for Council remains the “paper chase” of acquiring the written complaint, requesting a written response from the legal practitioner involved, and subsequently comparing them. Sometimes one party or the other is asked for further particulars. However, only in a very small proportion of cases is there a fuller examination using trained investigators or auditors, and these cases almost invariably involve allegations of fraud, trust account violations or other financial impropriety. In the circumstances, it is arguable that the bulk of complaints are processed, and not actively, thoroughly, investigated.

5.46 In the absence of an inquisitorial procedure focussed on the active pursuit of the relevant facts, the result is often that the report made on the complaint is equivocal, pointing out that the complainant has made certain allegations, the legal practitioner has denied them, and there is no independent evidence to sustain either version of the facts. Given the requirement in the legislation that the professional Councils must be “satisfied” about the allegations before a complaint is referred to the Standards Board or the Disciplinary Tribunal,⁴² the legal practitioner is effectively given the benefit of any doubt by the dismissal of the complaint, even though this may be due as much to the style of investigation as the actual state of affairs.⁴³

5.47 It is not hard to see that some complainants may be dissatisfied with this procedure, particularly when a notice of the dismissal follows a long period of silence. It is likewise easy to see that some complainants could draw the conclusion that the system is “fixed” or biased - a case of lawyers simply “protecting their own”. However, the Commission believes that any problem lies more in the inadequacy of the system than in any lack of impartiality or integrity. The method of investigation of complaints that is used now is essentially the same one that was examined by the Commission over a decade ago. The new disciplinary scheme established by the 1987 Act has effected many changes in the handling of complaints, but the actual manner of investigation has survived largely intact. This appears to be a matter that is determined more by traditions and received wisdom - that is, by a local “culture” - than by legislation.

5.48 The Commission believes that a much more active, inquisitorial form of investigation should be considered. This would require Councils expecting and demanding more from their complaints committees, and the committees expecting and demanding more from the investigative staff utilised by the professional associations. This in turn will require better training of investigative officers, more resources devoted to investigation, and. a different, more active, approach.

Resources devoted to investigation

5.49 In England, the Law Society’s Complaints Bureau employs about 160 staff. Twenty staff lawyers are involved in the mediation and conciliation of complaints alone. A “diagnostic unit” of three to four staff members is assigned to each complaint received, to analyse the matter thoroughly and determine the nature and extent of the investigation to be undertaken. With a staff of this size, the Bureau also is able to keep complainants notified regularly of the status and progress of the case, and to take active measures to secure the necessary information to complete its investigations.

5.50 In New South Wales, the Law Society has 17 (professional and support) staff members in the Professional Conduct Department. The Bar Association has no permanent staff devoted to the investigation of complaints. Even allowing for the differences in size of the general populations and legal professions in England⁴⁴ and New South Wales, the English system allocates considerably more resources to the proper investigation of complaints and the monitoring of complainant satisfaction with the process.

5.51 One immediate suggestion is that the Law Society consider altering its Complaints Committee structure. As mentioned above, the Bar Council uses four committees (in rotation) to process fewer than 100 complaints annually, while the Law Society uses a single committee (albeit supported by a much larger staff in the Professional Conduct Department) to process well over one thousand complaints annually. Consideration should be given to using a larger number of Complaints Committees (with, say, six members rather than the present 10) to ensure that each complaint is given more attention. Committees of Council exercising delegated authority must be chaired by a Council member, under the Act, but the general membership is not so limited. However, of the seven solicitors on the Complaints Committee in 1990-1991 (leaving aside the Executive Member), six were members of Council. Given the fact that the reports and recommendations of the Committee must go to the Council anyway, it appears that much greater use could be made of non-Council members in order to provide the numbers to operate several Complaints Committees in tandem.

Power to compel the production of evidence.

5.52 One of the significant problems with investigating complaints against lawyers in New South Wales is that the professional Councils (and their complaints committees and officers) do not have clear powers to require the production of files and other relevant documents. In Victoria, the Law Institute may require the production of files upon the serving of a notice signed by the Professional Conduct Manager and at least two Councillors. In New South Wales, there are considerable powers available to those investigating complaints against medical practitioners to enter and inspect premises, compel the production of records, compel the answering of any questions or the furnishing of any information “in relation to the carrying out of that professional practice”, and so on.⁴⁵ However, the Law Society and Bar Councils have no direct powers to compel the production of material evidence - they may only request such evidence, although the request may be backed up by the threat to suspend or cancel a practising certificate for failure to provide the Council with a satisfactory explanation of conduct when required to do so.⁴⁶ Consideration should be given to providing the Councils (and thereby their complaints committees exercising delegated authority) with powers to compel the production of files and other relevant material necessary for the active, thorough investigation of complaints.

The powers of the professional Councils

Rationalising the existing statutory powers

5.53 The submissions from the Law Society and the Bar Association suggest, not surprisingly, that the powers of their respective Councils ought to be increased. The Commission has noted, throughout the discussion of this Option, a number of anomalies and curiosities in the allocation of powers to the professional Councils. For example, the powers of the Bar Council, in particular, are quite inadequate in relation to placing conditions on a barrister’s practising certificate,⁴⁷ particularly when compared with the powers of the Law Society Council in respect of solicitors. To date, the Bar Council mainly has seen the new practising certificate system as a means of more closely supervising the entry into practice of new barristers and of restricting the prior practising rights of “non-traditional” barristers, such as legal academics and government lawyers, rather than as a means of regulating more senior barristers or as an important adjunct to the disciplinary system. Another change which suggests itself is that the Councils should have clear powers to compel a prompt, genuinely responsive, answer to a complaint from the legal practitioner who is the subject of the complaint.⁴⁸

5.54 The Bar Association’s submission points out that, under the existing legislation, if the Bar Council (or the Law Society Council) investigates matters of its own motion rather than after a complaint, it can only refer the matter to the Standards Board or the Disciplinary Tribunal.⁴⁹ The Bar Council cannot, for example, reprimand the legal practitioner involved.⁵⁰ The Bar Association submits that the “powers available to the Council should be the same regardless of how the investigation has arisen.”⁵¹ There does not appear to be any good reason for this discrepancy. Identical remedial orders should be available to a Council whether the investigation commenced on the complaint of a client or a court or some other agency, or on the motion of the Council itself.

5.55 Dismissals with compensation. If a Council is satisfied that a complaint involves a question of unsatisfactory professional conduct, it may do one of three things: refer the complaint to the Standards Board, reprimand the practitioner (with his or her consent), or dismiss the complaint.⁵² If the matter is referred to the Board, the Board may order compensation for the complainant. However, if the Council dismisses the complaint (despite a finding of unsatisfactory professional conduct) or reprimands the practitioner, it has no power to order compensation. A complainant should not be disadvantaged in this way. Where a complainant has requested the making of a compensation order and the Council is satisfied that there is a question of unsatisfactory professional conduct⁵³, it should be obliged to refer the matter to the Standards Board.

5.56 The standard of proof for referrals to the Board and Tribunal. The professional Councils only may refer complaints to the Standards Board or the Disciplinary Tribunal if they are “satisfied” that the complaint involves a question of unsatisfactory professional conduct or professional misconduct, respectively.⁵⁴ However, if a Council is acting on its motion rather than on an outside complaint, it may refer the matter to the Board or Tribunal “if it appears to the Council that the legal practitioner may be guilty of unsatisfactory professional conduct or professional misconduct”.⁵⁵ In the former case, a Council which is simply unsure about the evidence or the guilt of the practitioner would not be “satisfied” and thus could not refer the matter to the appropriate disciplinary body for a hearing and determination. It is odd that a Council’s uncertainty effectively serves to pre-empt the consideration of a complaint by an independent Board or Tribunal. There should be no difference in the onus between “external” complaints which come to the Councils from clients and others, and “internal’ complaints which are made on the initiative of the professional body. In both cases, the appropriate standard for referral should be that “it appears to the Council that (a) the legal practitioner may be guilty of unsatisfactory professional conduct or professional misconduct, or (b) the interests of justice so require”.

The problem with expanding the role and powers of Councils

5.57 While accepting the need for the dispute resolution procedures which permit the professional Councils to deal with appropriate (non-conduct) matters more quickly and flexibly, the Commission is aware of the tension between increasing the role and powers of the Councils and the need for open, accountable, independent decision-making in the disciplinary system. The Council stage in the complaints-handling process is closed to the complainant and the general public and it is difficult to see how it could be otherwise, given the nature of the proceedings. However, of the other bodies hearing complaints, the Disciplinary Tribunal and the Supreme Court conduct their proceedings in public, and we have proposed that the Standards Board do the same in future.⁵⁶ At a minimum, as we have suggested above, the complainant should be entitled to be present at any hearing of his or her complaint, and to appear as a party subject to a risk as to costs. From the legal practitioner’s point of view, there also would be natural justice concerns if the Councils were given powers to punish, beyond the issuing of a reprimand, without affording the practitioner a reasonable opportunity to be heard and to contest adverse evidence.

5.58 These concerns would be alleviated somewhat if, as the Law Society submitted and we later propose, the external monitor of the system (whether this is the Chairperson of the Conduct Review Panel, a Lay Observer, or an Ombudsman) attended the meetings of the Complaints Committees and Councils. This would reinforce the external scrutiny supplied by the lay members of the Council and their committees. However, there is no real substitute for the process being open to complainants and the public in order to provide assurance that the system is fair and impartial. The greater the role of the professional Councils, the greater the prospect that there will be lingering suspicions that the system operates as a “club” run by and for members of the legal profession rather than the public. This perception may remain irrespective of the actual integrity and impartiality of the system. For example, doubts may arise where a Council moves to dismiss a complaint notwithstanding a finding that the legal practitioner is guilty of unsatisfactory professional conduct.⁵⁷

5.59 We have noted above the infrequency with which the Councils refer matters to the Standards Board and Disciplinary Tribunal. According to Law Society figures, of the 1245 formal complaints in 1990 considered by the Law Society Council, only 12 (1%) were referred to the Standards Board and 55 (4%) to the Disciplinary Tribunal.⁵⁸ It is impossible, and quite unwise, to specify a more “appropriate” quota of matters which should be referred. Nevertheless it seems clear that the present practice does not meet the intention of the new legislation, which was to reduce significantly the proportion of matters being disposed of “in-house” by the professional associations.

5.60 In practice, the Law Society’s Complaints Committee, and subsequently the Law Society Council, only discuss in detail those complaints in which there is a report which recommends some positive action against the solicitor involved (ie, at least a reprimand). The vast majority of complaints, however, involve recommendations for dismissal, and these are treated as “unstarred items” which do not receive individual consideration unless specifically requested by a Committee member. Given the methods of investigation currently employed (discussed above), there may be complaints in which the Complaints Committee or Council would recognise the need for further investigation and analysis leading to disciplinary action. Thus there exists the possibility that some complaints of substance are lost in the system.⁵⁹

The need for training

5.61 Many of the solicitors and barristers involved in the administration of the disciplinary process through their work on complaints committees and the Councils have extensive experience in this area. This has some important advantages, in that it provides stability, consistency and a corporate memory about how things are done. There also may be some disadvantages, in that less successful aspects of the process are perpetuated without the opportunity for a fresh approach. The professional associations have been concerned in recent times to achieve a balance in the disciplinary committees between long-serving and new members (both legal members and lay members), and this is a policy which should be encouraged. A number of the new members of the complaints committees have mentioned to the Commission that it is difficult to assume these new and important responsibilities which are in addition to their other commitments, without any training or orientation programs available for the new members (especially the lay members). New members, especially (but not limited to) lay members, would profit from information about the Act, the procedures used by the professional associations, the system of Boards and Tribunals, and so on. Seminar and workshops should be conducted periodically to address specific issues for continuing members.

Upgrading of reporting requirements

5.62 The Legal Profession Act imposes a number of reporting requirements on the professional Councils. The Councils are directed to report to the Attorney General at least once per year on the nature, composition and functions of the committees of the Law Society and Bar Association.⁶⁰ By implication, the Councils also must report on the role of lay representatives on the various committees.⁶¹ The Councils also must submit their annual reports to the Attorney General for tabling in Parliament.⁶² The professional Councils, the Conduct Review Panel, and the Standards Board also are obliged to report to the Attorney General on the investigation of complaints, review of dismissal of complaints, and hearings into complaints, respectively. These reports are to be submitted “at such times and in respect of such periods as the Attorney General directs”.

5.63 Two issues arise in respect of the reporting requirements for the Councils on the administration of their disciplinary responsibilities. First, the legislation probably should require that the reports be submitted to the Attorney General at least annually, and at such other times as the Attorney directs. The present wording⁶⁴ leaves open the possibility that reporting could be less frequent than once per year.

5.64 Secondly, the standard of reporting needs to be addressed. In New South Wales, the Law Society produces an Annual Report⁶⁵ which is designed to meet all of the reporting requirements discussed above. There is a list of the membership of the Complaints Committee, followed by a very brief description of the role of the Committee in the disciplinary process, with a two-sentence summary of the statistics for the year in question. Later in the Annual Report there is another brief description of the statutory basis of the Law Society’s disciplinary responsibilities and a somewhat fuller statistical portrait.⁶⁶ However, there is no explanation or analysis of the raw data; no detailed comparison with previous years or with other jurisdictions; no attempt to discern trends or identify problems; and no recommendations for consequential changes to the disciplinary process, educational standards and so on. Similarly, the Bar Association produces an Annual Report⁶⁷ which contains brief reports from its four Professional Conduct Committees, but is no more fulsome than the Law Society’s version.

5.65 The Commission is not suggesting that the Law Society has failed to meet its reporting requirements. To the contrary, there never appears to have been any clear guidelines or expectations set about the nature of these requirements. If the profession is to retain control over the disciplinary process, which is the assumption contained in this Option, the public interest requires that the annual reports of the Bar and Law Society Councils be as full, frank and informative as is possible. The half-yearly report of the Victorian Law Institute’s Professional Standards Department provides one good (although not optimal) example. It contains a clear summary of statistics (also presented graphically), some attempts at analysis and cross-tabulation of the data, figures on “the average life of a complaints file”, and other relevant material. The Law Institute’s report is distributed widely, including to all Members of Parliament, the major media outlets, consumer organisations, community legal centres and others.

5.66 One important and admirable feature of the Law Institute’s latest report is a summary of the findings of a survey administered by the Solicitors’ Board given to complainants and respondent solicitors measuring their levels of satisfaction with the dispute resolution process.

5.67 The Commission proposes that it become standard practice for the professional Councils each to produce an Annual Report on regulation and discipline which contains a full treatment of statistics, empirical and comparative analysis, case studies, satisfaction surveys, recommendations for consequential legislative or administrative change, and so on. The report should be to the Attorney in the first instance for tabling in Parliament, but should then be distributed much more widely.

Standing of the Councils before the courts

5.68 The High Court of Australia has recently heard and reserved judgment in a case testing the right of the Bar Association to appear as a party in proceedings before a court to determine whether a person should be admitted as a barrister. Under s51 of the Act, the Bar Council is authorised: (a) to take such steps as are necessary and proper to deal with professional misconduct by barristers or the unauthorised practice of law by unqualified persons;⁶⁸ and (b) to appear by counsel before, and be heard by, the Supreme Court in relation to barristers or candidates for admission as a barrister. Section 54 contains similar provisions in respect of the functions of the Law Society Council.⁶⁹ The High Court has been asked to consider whether (1) the Bar Association or Bar Council is the appropriate party to contest the admission, and (2) whether the appropriate body is entitled to call evidence and cross-examine, or merely to address.

5.69 The Bar Association’s submission⁷⁰ proposes that, whatever the outcome of the High Court hearing, the matter should be put beyond doubt by an amendment to the Legal Profession Act 1987 providing that the appropriate party is the Bar Association and that the Bar Association is entitled to call evidence and cross-examine the applicant for admission in any proceedings to oppose admission. The Commission agrees that this ought to be clarified by amending legislation.

External review - the Legal Profession Conduct Review Panel or a Lay Observer?

The existing system.

5.70 Apart from the inclusion of some lay members on the professional bodies which deal with disciplinary matters, the principal mechanism for external accountability in the Legal Profession Act 1987 is the Legal Profession Conduct Review Panel, which, upon the application of a complainant, reviews the dismissal of a complaint against a legal practitioner by the Law Society Council or Bar Council.⁷¹ The Review Panel consists of one barrister and one solicitor appointed by the Attorney General on the nomination of the relevant professional association, as well as four lay persons appointed by the Attorney after consultation with the Legal Aid Commission, the Law Foundation and other appropriate bodies.⁷² A complainant whose complaint has been dismissed by a Council may apply in writing within two months after the dismissal for a review of the decision. In a particular case, the Review Panel is comprised by one of its legal members (depending upon whether the subject of the complaint is a barrister or solicitor) and two lay members, selected by the Chairperson of the Panel. In practice, the Panel conducts its reviews on the basis of the documentary evidence collected in the course of investigation by the professional association, andMer$consultation with the relevant Council. It does not hear any of the parties or conduct any independent investigations. At the conclusion of its review, the Panel may uphold the decision of the Council to dismiss the complaint, or recommend to the Attorney General that the matter be referred to the Standards Board or the Disciplinary Tribunal.⁷³

5.71 The Law Society’s submission⁷⁴ was particularly critical of the Review Panel, and called for its abolition and replacement by a “Lay Observer”.⁷⁵ The Law Society identified four alleged deficiencies in the existing system. First, the Law Society suggested that there had been “unacceptable delay” in the Review Panel’s handling of matters referred to it. Second, the Law Society considered that the Review Panel’s exclusive reliance on information obtained derivatively from the Law Society’s investigation was a significant weakness. Third, the Law Society noted the limited jurisdiction of the Review Panel - in particular that the Panel may not consider a complaint prior to its dismissal by one of the professional Councils, and that the Panel may not deal with matters which have been disposed of other than by way of dismissal. Finally, the Law Society noted that the Panel is not required to provide any detailed reasons for its decisions nor to report periodically to the public or the Government. These issues, and others identified by the Commission, are discussed below.

The problem of delay

5.72 The Law Society is correct in pointing out that there have been considerable delays in the work of the Review Panel since its establishment. However, the factors causing these delays have mainly been beyond the control of the Panel itself, which, particularly in recent times, has met frequently and endeavoured to reduce the backlog of cases. One of the reasons for the delays is that the Act initially made no express provision for the appointment of alternate members to the Panel.⁷⁶ After the legislation was amended in 1989,⁷⁷ it still took some time before the alternates actually were appointed. The solicitor member was seriously ill for some considerable time and, despite the efforts and representations of the Chairperson of the Panel to have an alternate or replacement member appointed, this did not happen. Thus, for about nine months the Panel was unable to conduct any reviews in relation to solicitors. There is now an alternate solicitor member, but unfortunately no alternate barrister member has yet been named.

5.73 The other main reason for delay was the fact that the Bar Council did not turn over any of its files to the Review Panel from the time the Act came into force in January 1988 until early in 1992, on the basis that the Bar was concerned about confidentiality and the possibility of Freedom of Information legislation applying to the documents once they came into the possession of the Panel. The Bar Council took the position that the Panel’s statutory entitlement “to view (a) the record of the Council’s investigation of a complaint; and (b) all other documents held by the Council in relation to that investigation”⁷⁸ was to be interpreted quite literally: The Panel could view the relevant files and documents but could not take them away or copy them. This made it practically impossible for the Panel to carry out its work. Consequently, for three and one-half years the Review Panel was unable to review a single decision by the Bar Council to dismiss a complaint despite 30 applications for review from disappointed complainants.

5.74 In the circumstances, the Commission is unwilling to attach any blame to the Review Panel for the delays, and believes that the external review system can be made to work in a timely manner by altering or clarifying the legislation and procedures. The Chairperson of the Panel informed the Commission that all 1991 matters should be finalised by April 1992, and the backlog would effectively be over from that time.

The limited jurisdiction

5.75 The Commission agrees with the Law Society that the Review Panel’s jurisdiction is far too limited. The Panel should be empowered to review every decision made by the professional associations and their Councils, whether this involves a decision to dismiss a complaint, or to issue a reprimand, or to take some other action short of referral to the Standards Board or the Disciplinary Tribunal. A complainant may feel no less aggrieved by a Council decision to issue a reprimand to a legal practitioner than by a decision to dismiss the complaint entirely. The aim of external accountability is not met in such circumstances if there is no recourse by the complainant to the Review Panel, and the complainant may well feel that the lawyer’s interests were better looked after than his or her own. The need for increased review jurisdiction will be particularly important if the professional Councils are successful in gaining further powers to deal with what they regard as “minor” complaints, and if mediation and other more informal dispute resolution techniques are to be used more frequently. The Review Panel should have the same powers in New South Wales as the Legal Services Ombudsman has in England - to be able to review every decision in the disciplinary process (or a failure to make a decision), except a decision made by a court or tribunal.⁷⁹

The meaning of “review”

5.76 The Act states that the Review Panel “shall review” decisions to dismiss a complaint, upon application from the complainant. To this end, the Panel is required to consult with the relevant professional Council and is entitled to view the records and documents held by the Council in relation to the investigation of the particular case.⁸⁰ As a matter of practice, the Review Panel generally conducts only an administrative “paper review”, in camera, based upon the application of the complainant and the existing files. On occasion, the Panel has requested the Law Society⁸¹ to produce further information - that is, to present fresh evidence. Having regard to its resources and its own interpretation of the relevant sections of the Act, however, the Review Panel does not undertake any fresh investigation or re-investigation, does not receive submissions from the parties, and does not hear from the parties or from any other witnesses.

5.77 As members of the Panel have acknowledged, in discussions with the Commission, this procedure often comes as a disappointment to complainants, who assume that they will be notified of the time of the review, will be entitled to be present and to be heard (in person or through a representative), and will be able to put on and challenge evidence. That is, complainants assume that they will receive the opportunity to “appeal” against the Council’s decision. One experienced member of the Panel described this as “an austere, dehumanised procedure which does not satisfy the public”. The Chairperson of the Panel, Mr John O’Neill, described the Panel’s powers in this regard as “deficient”.

5.78 The general procedure of the Panel is determined by the Chairperson.⁸² It is arguable that the Panel may have taken too narrow a view of the powers it is already accorded in the Legal Profession Act 1987.⁸³ In considering the meaning of “review” in the particular context of the powers of the Compensation Court,⁸⁴ the New South Wales Court of Appeal determined that it connoted “a very large power”, at least as wide as that comprehended by the term “appeal”, and that it was open to the judge conducting the review to permit evidence to be adduced, whether fresh evidence or not - at least “on a proper case”.⁸⁵ Whatever the correct interpretation of the breadth of the term “review” in the context of the powers of the Conduct Review Panel, there is little doubt that these powers ought to be clarified and significantly increased by legislation in order to permit the Panel to conduct an effective review of the decisions of Councils to its own satisfaction and that of complainants.

5.79 The weakness of the current system of review is neatly illustrated by reference to one of the provisions in the Act meant to benefit complainants: under s134(4), if a Council fails to deal with a complaint within six months, it may be deemed to have been dismissed for the purpose of the complainant seeking a review of the “decision” by the Conduct Review Panel. However, in practice, this would likely be a futile exercise. Given the Panel’s inability to properly investigate the matter itself, including discussing the matter with the complainant, there would be little or nothing on the record for it to examine. To give meaning to this provision the Panel would be required to step into the shoes of the Council and conduct a thorough investigation of the original complaint - as well, perhaps, as examining why the Council failed to deal with the matter in a timely fashion.

5.80 It should be noted by way of contrast that the Legal Services Ombudsman in England has more thorough-going powers to review dismissed complaints, including re-investigation where appropriate. The Legal Services Ombudsman may require any person to furnish information or produce documents considered relevant, and has the same powers as the English High Court to compel attendance, examine witnesses, and so on.⁸⁶ The Legal Services Ombudsman also may make recommendations of an advisory nature to the professional bodies about the nature or sufficiency of the arrangements they have in place for the investigation of complaints, and the professional bodies are under a statutory obligation “to have regard” to any such recommendation.⁸⁷

5.81 As mentioned earlier, the Panel’s view of the extent of its own powers is no doubt coloured by practical considerations about the resources which currently are made available to it, and which currently are not calculated to support a system of full hearings. The resources issue is discussed more fully, below.

The Panel’s power to order a hearing

5.82 After conducting a review, the Panel may, if it sees fit, recommend to the Attorney General that the matter be referred to the Standards Board or the Disciplinary Tribunal. It has made such a recommendation only 14 times out of a total of about 400 matters considered (all, of course, in relation to solicitors). According to the Registrar of the Disciplinary Tribunal, who also has responsibility for the Panel, the Attorney General has only formally notified the Panel in respect of two of these matters. The remainder are still awaiting a decision - some for over a year.

5.83 The Act contains other provisions which would indicate that the review process is weighted against complainants. For example, the Panel is required “to consult with a Council before it completes its review of the Council’s decision to dismiss a complaint”,⁸⁸ but it is not required to consult with the complainant. Similarly, before the Panel decides to recommend to the Attorney General that a matter be referred to the Board or Tribunal, it must notify the appropriate Council,⁸⁹ giving it the opportunity to pre-empt a report to the Attorney by referring the matter itself.⁹⁰ Yet there is no parallel requirement that the Panel notify the complainant where it intends to uphold the decision of a Council to dismiss a complaint, affording the complainant the opportunity to come forward with more information. In 1990, the Law Society Council only changed its decision to dismiss on one occasion following notification by the Panel of its intention to recommend referral of the matter to the Board or Tribunal.

5.84 It is difficult to see why the recommendation of the Panel should not be given direct effect, rather than triggering yet another review by the Attorney. In recent discussions with the Commission, the Bar Association supported this view. The Attorney General is required to “take into consideration, but is not bound to follow, the recommendation made by the Panel”.⁹¹ If the Panel’s only power is to refer the matter for hearing, there is little danger in giving this direct effect. The added layer of the Attorney General, who would no doubt act on the advice of departmental officers or the Crown Solicitor, only contributes to delays in the final determination of a complaint, and leads to the view that the system is balanced against the complainant. Where the Panel resolves to uphold the decision of the professional Council, it should be required to provide the complainant with written reasons.

Membership

5.85 Under the Act, the only qualification for appointment as a lay member of the Review Panel is that the person is not a legal practitioner.⁹² In the Commission’s view, it is important that the person be of sufficient integrity, strength of character, independence, experience and community standing that he or she will be capable of questioning the decisions of a Council of eminent lawyers in a fair but firm manner, and of assuring the general public of the probity of the disciplinary system. These qualifications should be spelled out more fully in the legislation.

5.86 The Commission understands that it has not been common practice for such positions to be advertised. In order to attract the best possible candidates and to assure the public of the independence of the persons appointed to the Panel, such appointments should only take place following a proper advertising and selection process.

Resources

5.87 As indicated in the discussion above, one of the key factors in making the system of external review work is the proper resourcing of the Review Panel. At present, the expenses of running the Panel, as well as most of the rest of the disciplinary system,⁹³ are reimbursed from the Statutory Interest Account⁹⁴ - that is, the interest which accrues on clients’ money held in trust by solicitors. Both the submission from the Law Society and the submission from the Bar Association refer to the need for the external review mechanism to be resourced more “adequately”⁹⁵ and “effectively”⁹⁶ than has occurred to date.

5.88 Given the essential role of external review in promoting public confidence in the integrity of the disciplinary system, sufficient resources must be made available (whether from the Statutory Interest Account, General Revenue, or some other source) to: (1) provide adequate levels of remuneration to the lay members of the Panel, having regard to the time commitment and complexity of the work involved, in order to attract and retain competent people; (2) establish a small, full-time secretariat, to facilitate the work of the part-time Panel; (3) provide the necessary legal and technical advice and research to the lay members of the Panel; (4) make possible the active investigation or re-investigation of complaints in appropriate cases; (5) conduct relatively informal hearings at which the parties may be heard; and (6) run training programs for the lay members. (General issues regarding the funding of the disciplinary system are discussed in Chapter 4.)⁹⁷

The Law Society’s proposal for a Lay Observer

5.89 After offering a critique of the existing system of external review, the Law Society’s submission contained an interesting proposal for the introduction of a “Lay Observer” to replace the Review Panel.⁹⁸ Under this proposal, the Lay Observer would assume the powers currently available to the Panel. The Lay Observer would be empowered to review the investigation of any complaint, whether at the request of the complainant, the Attorney General, or on his or her own initiative. The Lay Observer also would be entitled to refer a matter dealt with by the Complaints Committee for reconsideration by the full Law Society Council.

5.90 A major innovation in the proposal is that the Lay Observer would participate throughout the disciplinary process, rather than simply reviewing some decisions at the end of the line. Thus, the Lay Observer would be entitled to attend and participate in the meetings of the Complaints Committee and the Council, and could attend the hearings of the Standards Board and the Disciplinary Tribunal as an observer. The Lay Observer would also be entitled to attend any dispute resolution conference as an observer. The Lay Observer would have full access to the files of the Law Society’s Professional Conduct Department, which handles the initial investigations, on the basis of strict confidentiality.

5.91 The Law Society suggests that the Lay Observer is a full-time position, to be appointed by the Attorney General. The Lay Observer should be a person of some standing in the community and not be a member or an employee of a member of any branch of the legal profession. The Lay Observer should be required to report to the Attorney General at least once per year and this report should be made public. The Lay Observer should also be required to report to the professional Councils at least twice per year, so that the Councils may deal with any concerns at a relatively early stage.

5.92 In its submission,⁹⁹ the Bar Council stated that it did not object to the Law Society’s proposal, but it could “see difficulties for the Lay Observer being genuinely able to perform the intended function.” The Bar Council’s preference is to “leave the Panel intact but resource it more effectively than has occurred in the past.”

Conclusions

5.93 The functions of the external monitor. The Commission agrees with much of the Law Society’s proposal - in particular, that the role of the external monitor should not be limited to a partial, post hoc, review of some decisions of the professional Councils. In our view, the external monitor should:

• be entitled to, and practically assisted to, scrutinise the initial handling of complaints, to determine whether potential complainants are given the appropriate advice and assistance to make complaints or pursue other avenues and remedies;
• have access, on a confidential basis, to all of the files and other records relevant to the assessment and investigation of complaints against lawyers;
• be entitled to review all of the decisions of the professional Councils and bodies exercising delegated powers (such as the Complaints Committees), and not merely dismissals;
• be entitled to undertake a review upon an application from the complainant, or the Attorney General, or on its own initiative;
• be entitled to attend and participate in the meetings of the Complaints Committee and the professional Councils;
• be entitled to attend the hearings of the Standards Board and the Disciplinary Tribunal as an observer;
• be entitled to attend any dispute resolution (mediation or conciliation) conference as an observer;
• be entitled to conduct a thorough review of the complaint, including investigation, re-investigation, and holding hearings where appropriate; and
• be required to report annually to Parliament through the Attorney General, and at least semi-annually to the professional Councils.

5.94 The head of the Panel. The Commission has doubts whether the external monitoring functioning would be most effectively discharged by a single person, no matter how eminent. The Victorian Lay Observer, who is part-time official, has told the Commission that she believes that it would be desirable to have two full-time persons, in order to satisfactorily fulfil the roles of discipline monitor and community educator. Our preference, at this time, would be to maintain the Panel structure for monitoring the disciplinary system, but with a high profile, full-time, appropriately qualified and remunerated, head. Whether this person is called the “Chairperson of the Legal Profession Conduct Review Panel”, as at present, or the “Lay Observer”, as the Law Society suggests, or the “Legal Services Ombudsman”, as in England, is not critical, although the title used should be one which is capable of readily gaining public recognition and indicates the importance and independent status of the office. Such a person would be responsible not only for participating in the process in the manner described in the previous paragraph, but also for stimulating community education and debate about the role and conduct of the legal profession. This will be a demanding enough job. For the purposes of reviewing individual complaints, and bringing a range of viewpoints and expertise to bear, the multi-member Panel - which includes a legal representative, who can offer technical and practical insights - is better placed to get through the work. The Commission would welcome further submissions on this issue.

5.95 Relationship with complainants. A complainant who is dissatisfied with the handling of his or her complaint and has taken the trouble to apply to the external monitor for a review is unlikely to be reassured by a subsequent, dry letter which upholds the professional Council’s decision to dismiss. In Victoria, the Lay Observer often also brings complainants into the office as a courtesy to explain her decision, and the factors behind it, in person. At the time of his appointment, the Legal Services Ombudsman for England and Wales suggested that he would also follow this practice. In Victoria, the Lay Observer also is permitted to recommend that compensation be paid to a complainant from a discretionary fund maintained by the Law Institute for this purpose. These practices should be considered for New South Wales.

OPTION TWO: A LEGAL SERVICES COMPLAINTS COMMISSION

Introduction

5.96 The terms of reference for this inquiry specifically direct the Commission to consider the introduction of a “complaints unit”. This concept, in New South Wales, comes from the Complaints Unit already in operation in the health care area. In designing this Option, the Commission has looked to the Complaints Unit’s structures and operation to provide a model for an independent Legal Services Complaints Commission.

5.97 Of the three Options presented, this one involves the most fundamental change to the existing approach to handling complaints against barristers and solicitors, substituting an independent commission for the role of the Law Society and Bar Association.

The Health Complaints Unit

5.98 In Chapter 3 of this Discussion Paper we consider in some detail the nature and operations of the Complaints Unit of the NSW Department of Health. The Unit receives, investigates and prepares for prosecution¹⁰⁰ before the various Boards and Disciplinary Tribunals complaints about health care service providers (mainly doctors, but also nurses, psychologists, and others).¹⁰¹

5.99 The Complaints Unit was established administratively within the Department in 1984, and operates largely under delegated powers drawn from a number of different pieces of legislation which deal with the registration of health care professionals and with hospital administration. As a matter of policy and practice, the Complaints Unit has acted independently of ministerial direction and public service constraints. The State Cabinet has recently approved, in principle, the reconstitution of the Complaints Unit as an independent statutory authority, the Health Care Complaints Commission (HCCC).

5.100 The Complaints Unit has a staff of about 50, including five doctors and eight lawyers. Frequent use is made of consulting medical practitioners to provide an independent assessment of the treatment of a particular patient, and the specialist medical colleges also have cooperated in providing this sort of expert advice.¹⁰² The Complaints Unit currently receives, and the HCCC will receive, its funding from the State’s Consolidated Revenue (at present through the budgetary allocation to the Department of Health).

The need for an independent Legal Services Complaints Commission

5.101 The system proposed in this Option could be adapted readily from the medical to the legal context. Indeed, the Commission understands that the Health Complaints Unit’s regime was devised based on the principles of professional regulation contained in the Law Reform Commission’s earlier Reports on the Legal Profession.

5.102 The decision to establish such a system is contingent upon reaching the conclusion that the most effective way to ensure the actual and perceived independence and integrity of the disciplinary process is to remove the responsibility for reception, investigation and assessment of complaints from the legal professional associations and to place that responsibility in the hands of an independent commission. Apart from the health care area, no other private professions¹⁰³ or service-providers (journalists, accountants, engineers, bankers, architects, etc) are regulated in this way.

5.103 However, it may be that there is something different or special about the medical and legal professions which requires regulation in a different or special way. The relationship between lawyers and their clients is deeper and more intimate than is the case with many other professionals, and is set in a more highly-charged context. Clients often come to lawyers in response to trauma, or actual or potential peril (personal or financial). Dealings with lawyers may involve, and sometimes require, the revelation of sensitive personal details, taking advice on important life decisions, and making admissions about personal misconduct. Another important distinction may be the fact that significant amounts of public funds are expended for the provision of legal services (with most of that money going to private practitioners) through the legal aid system and the courts, and, especially, for the provision of health care services (through the Medicare system and the public hospitals). In these circumstances there is an argument that a greater measure of public accountability is appropriate.

5.104 If this course is chosen, then it will be necessary to establish an independent statutory authority known as the Legal Services Complaints Commission, constituted under its own legislation. Given that the independence of the institution is its most salient feature, it would be inappropriate, for example, to establish administratively a legal complaints unit within the Attorney General’s Department with the promise of a subsequent clarification of status.¹⁰⁴

The role of a Complaints Commission

5.105 Under this proposal, the independent Complaints Commission would replace the Law Society and Bar Councils, and their committees and officers, as the agency primarily responsible for all aspects of complaints-handling up to the point that a matter is sent to a court, Standards Board or Disciplinary Tribunal for hearing and determination.

5.106 The professional Councils would have a residual role in the disciplinary process, however, in that the Councils would still control the issuing of practising certificates, and it may be that a Council should still be free to refer a matter to the Standards Board or the Disciplinary Tribunal on its own motion.

5.107 The Legal Services Complaints Commission (Complaints Commission) would be responsible for the receipt of all complaints, with the concomitant obligations to make the process reasonably accessible to complainants through the direct provision of assistance as well as the availability of appropriate literature, translation services, and so on.

5.108 The Complaints Commission would itself make an initial assessment of all complaints to determine whether to divert a matter for mediation (by an agency outside the Complaints Commission¹⁰⁵); whether (and exactly how) to investigate a matter which apparently raises issues of professional misconduct or unsatisfactory professional conduct; and whether to discontinue an investigation.

5.109 Subject to basic considerations of administrative natural justice, the Complaints Commission should be given sufficient powers to conduct its investigations effectively,¹⁰⁶ noting that it is exercising an essentially protective function (ie, protective of the public interest) rather than a prosecutorial or punitive one.¹⁰⁷

5.110 At the conclusion of its investigation, the Complaints Commission would itself determine whether to refer a matter for hearing before the Standards Board or the Disciplinary Tribunal. The Complaints Commission also should be free to forward to the professional Councils any material which it considers may bear upon the issuing, suspension or cancellation of a practising certificate.

5.111 Unlike the role of the professional Councils in the current system, however, the Complaints Commission should not have any power to reprimand (or otherwise sanction) a legal practitioner. If the Complaints Commission believes that such action is warranted, then the proper course would be to refer the matter to the Board or Tribunal. Similarly, the Complaints Commission should not have any power to award compensation, this being the proper province of the disciplinary bodies.

The structure of a Complaints Commission

5.112 There are several models of governance to choose from for a Complaints Commission. The first is to appoint a Commissioner (or “President”, or “Chairperson”) with statutory decision-making powers in relation to the operation of the Commission. The Commissioner may be supported by one or more Deputy or Assistant Commissioners, who may serve on a full-time or part-time basis, but do not have statutory decision-making powers, except in the case of a Deputy filling in for an absent Commissioner. Below this level, there should be an administrative head, with responsibility for day-to-day supervision of the professional and support staff. The Office of the Director of Public Prosecutions and NSW Law Reform Commission are constituted in this way, for example.

5.113 A second possibility is to establish a governing board for the institution with plenary powers, which establishes policies and priorities, and to which the Commissioner is responsible. The various State and Territory Legal Aid Commissions mainly operate in this way, for example.¹⁰⁸

5.114 The Independent Commission Against Corruption is constituted by a Commissioner with significant operational authority, and Assistant Commissioners.¹⁰⁹ However, there also is an Operations Review Committee established by the legislation which advises the Commissioner on the conduct of particular investigations as well as on matters of general policy.¹¹⁰ There is also a Parliamentary Joint Committee which is charged with monitoring the exercise by the Commission of its functions, but the Committee is not authorised to consider the investigation or determination of a particular complaint.¹¹¹

5.115 A third model, combining some features of the first two, is to place the statutory authority for operating the Commission in its Commissioner (or Director, or whatever other nomenclature is used to designate the head), but to provide as well for a broadly constituted Advisory Council which assists (but does not bind) the Commissioner by offering a diversity of views and experience.

5.116 At this stage, we are somewhat inclined towards the third approach, which would allow for the representation of various interests on the Complaints Commission - consumers, barristers, solicitors, public sector lawyers and others - in an advisory capacity which could augment the expertise of the Complaints Commission without compromising its independence. The role of the Advisory Council should be limited to consideration of matters of general policy and procedures, and it should not in any way be involved in the handling of individual complaints nor should members of the Advisory Council have access to the Complaints Commission’s working files. We would be interested in receiving submissions on this question.

The appointment and qualifications of Commissioners

Appointment

5.117 The head of the Legal Services Complaints Commission must be, and be seen to be, above partisan political and sectional interests. The method of appointment should reflect and reinforce this status. As with all statutory office holders, the formal appointment should be by the Governor in Council (that is, the Governor acting on the advice of the Cabinet), after nomination by the Attorney General. The position should first be advertised in the media to attract a suitable field of candidates. The same considerations apply to the appointment of Deputy or Assistant Commissioners.

5.118 In the discussion of Option One,¹¹² we proposed that the Legal Profession Advisory Council provided for in the legislation¹¹³ should be established or, preferably, that the Commission’s earlier recommendation¹¹⁴ for the creation of a more broadly constituted Public Council on Legal Services be implemented. Either of these bodies would be in a good position to advise the Attorney General on the appointment of Commissioners.

Qualifications

5.119 Commissioners should possess highly developed investigative and managerial skills, as well as the capacity to promote public discussion and community education about the role of lawyers and about professional standards. Commissioners certainly should be aware of the nature and context of legal practice. Legal qualifications should be a requirement for the head of the Complaints Commission, perhaps, but should not be required of all commissioners. It must be remembered that in this Option the independent Complaints Commission replaces the professional Councils, and it is correspondingly necessary to replace at least some of the accumulated legal experience which would be lost. The Complaints Commission also will be able to achieve this through the employment of senior staff lawyers, the use of experts and consultants for peer review, and other methods.

Reporting requirements

5.120 The Legal Services Complaints Commission should be required to report annually to the New South Wales Parliament through the Attorney General, with such report to be tabled within 14 sitting days. The report shall adequately describe the experience of the disciplinary system for the preceding year, and may contain general observations and recommendations relating to the maintenance and enhancement of professional standards.

Public accountability and external monitoring

5.121 Although this proposal establishes an independent mechanism for the receipt and investigation of complaints, there inevitably will continue to be occasions when a complainant is dissatisfied with the handling of his or her particular matter, particularly where the Complaints Commission decides not to proceed with an investigation or, having concluded an investigation, decides not to refer the matter to the Standards Board or the Disciplinary Tribunal.

5.122 One possibility would be to retain an external monitoring mechanism in the system, such as the Legal Profession Conduct Review Panel. However, the principal reason for external monitoring in the current system is to provide an independent check on a process which is largely dominated by the legal profession. This justification falls away in a system which is predicated on a process which is clearly independent of sectional control. Complainants should be entitled to an independent assessment of their claims, but not necessarily to a sequence of independent reviews.

5.123 Consequently, we do not propose at this stage that this Option include a specific external monitoring feature. As a public agency, of course, the Legal Services Complaints Commission would be accountable to the Ombudsman, the Independent Commission Against Corruption, the Privacy Committee, and other bodies charged with monitoring the exercise of public authority.¹¹⁵ The Health Complaints Unit has established its own Consumer Advisory Committee with representation from consumer groups, community groups, and others, to assist with consultation and information exchange.¹¹⁶ A Legal Services Complaints Commission may find it useful to follow this precedent.

Potential advantages

5.124 The main advantages of this approach could be:

• the perceived and actual independence of the Complaints Commission from the profession(s) it regulates, thus promoting public confidence in the integrity of the system;
• the potential for a more active, thorough and “professional” approach to investigation by a full-time, expert body dedicated to that activity;
• the creation of a streamlined process with a single point of contact for complainants, replacing the existing complexity of multiple levels of departments, committees and Councils with separate responsibilities in respect of barristers and solicitors;¹¹⁷
• the ability to cover impartially the whole of the legal services industry, including para-professionals, at a time when the deprofessionalisation of some areas of traditional legal work (such as conveyancing) calls into question the existing professional-based regulatory system;
• the absence of any real need for a specific external review mechanism, while maintaining public accountability through existing means, such as ICAC and the Ombudsman;
• the potential for the maintenance and enhancement of standards through the feedback of information to major service-providers and to those responsible for education and training; and
• the ability of a Commission with a high-profile head to promote community education and discussion about the legal profession, the complaints system and other relevant matters.

5.125 In the submissions which the Commission has already received, this approach is generally favoured by the Australian Consumers’ Association,¹¹⁸ the Combined Community Legal Centres Group,¹¹⁹ the NSW Council for Civil Liberties,¹²⁰ and the Lawyers Reform Association,¹²¹ as well a number of individuals.

Potential disadvantages

5.126 The main disadvantages of this approach could be:

• the more adversarial nature of this process;
• hostility and lack of cooperation from the legal profession;
• increased expense, as the many volunteers from the professional Councils may need to be replaced by salaried employees and paid consultants; and
• the possible loss to the system of accumulated expertise, at least in the transition.

5.127 The submissions from both the Law Society and the Bar Association strongly oppose the removal of the legal professional Councils from the disciplinary process and their replacement by an independent complaints unit or commission (anticipating this Option from the terms of reference). For example, the Bar Association submitted that:

The establishment of additional structures which are separate and apart from the professional bodies creates tension between the profession and those organisations. They may give an appearance of accountability, but they do so at the expense of a quick, effective, protective regulation and dispute resolution. ... There is a fundamental and vital reason for not establishing such organisations [as a Complaints Unit or an Ombudsman’s office] to receive and deal with complaints. The existence of “external regulators” effects a shift in responsibility away from the individual professional, and the profession generally. That is a most retrograde step, and a difficult one to reverse.¹²²

5.128 However, it should be noted that professional hostility is not in itself an argument against change, if this is clearly in the public interest. The initial antipathy of the medical profession towards the Health Complaints Unit now seems to have largely dissipated, and the current debate about the reconstitution of the Unit as a Health Care Complaints Commission is more about the details than about the general principle. The experience in this area also suggests that there will be sufficient cooperation from senior members of the profession to provide the necessary expertise to permit peer review and expert assessment of particular cases.

OPTION THREE: A LEGAL SERVICES OMBUDSMAN

Introduction

5.129 In the terms of reference, the Commission is asked specifically to consider the need for a Legal Services Ombudsman. No doubt this term was inspired by the recent introduction of a Legal Services Ombudsman in the England and Wales. In the manner in which we have structured it, this Option is something of a compromise between the first two. It seeks to address the “weakest links” in the existing, largely self-regulatory, system of complaints-handling: namely the real and perceived lack of independence from the legal profession, the doubts about the initial intake of complaints and the adequacy of the investigation and, at the other end of the process, the efficacy of the external monitoring mechanism.

5.130 Unlike the second option, which also is intended to meet these specific objectives, this proposal preserves much of the remainder of the existing disciplinary system, at least to the extent that we have not already suggested changes in our discussion of Option One, above. The principal difference between this proposal and Option Two is that in Option Three, the roles of the Law Society Council and the Bar Council are preserved as the initial bodies for the determination of complaints and referral to the Standards Board or Disciplinary Tribunal. As in Option One, however, the performance of the Councils is to be monitored by an external agency, being the Conduct Review Panel, but in this case under the leadership of the Legal Services Ombudsman.

The establishment of an office of Legal Services Ombudsman

5.131 The Commission has chosen to use the title “Ombudsman” for the head of the proposed office which will receive and investigate complaints and perform the external monitoring function for the rest of the disciplinary system. The term is well-known and understood by the general public and the media (notwithstanding its Swedish origins), and carries the clear connotation of the independent and impartial investigation of complaints.

5.132 While the title Ombudsman initially was used mainly in relation to complaints against governments or government officers,¹²³ there is a recent trend towards a more general usage. There is already an Ombudsman for the banking industry,¹²⁴ and there are similar plans for the insurance and telecommunications industries. A number of newspapers have experimented with an in-house Ombudsman, apart from the loose regulation otherwise provided by the Australian Press Council. As the submission from the Australian Consumers’ Association suggests,

It is possible for either an ombudsman or a complaints unit to meet the principles of accessibility, accountability, fairness and efficiency, but we believe an ombudsman has an advantage. A single ombudsman can achieve a higher public profile, leading to greater public awareness, trust and therefore greater accessibility.

5.133 The term “Ombudsman” suggests certain essential qualities, but it is not self-defining when it comes to the precise role that the office-holder or the office is meant to play in the disciplinary system. As discussed in Chapter 3, the Legal Services Ombudsman in England and Wales has a far more limited role than the one which we propose here.

5.134 In England and Wales, the main function¹²⁵ of the Legal Services Ombudsman is to review the way in which complaints have been handled by the professional associations. This may involve some re-investigation of the complaint, both in terms of the sufficiency of the initial investigation as well as the substance of the complaint. The Ombudsman’s office may not commence an inquiry until after the professional body has finished dealing with the matter (unless there has been unreasonable delay). The Ombudsman is not permitted to investigate issues which have determined by the courts or the statutory disciplinary tribunals. Once the Ombudsman has commenced an inquiry, he or she has the same powers as the English High Court (Supreme Court) to compel the attendance of persons, to compel the production of documents or other information, and to examine witnesses.¹²⁶

5.135 Having completed an investigation, the Ombudsman must report in writing to the complainant, the practitioner who is the subject of the complaint, and the relevant professional association. The Ombudsman may make recommendations that: (1) the complaint be reconsidered by the relevant professional association; (2) the professional association exercise its powers; (3) the subject of the complaint and/or the professional association involved pay specified compensation to the complainant for any loss, distress or inconvenience suffered; and (4) the complainant be reimbursed whole or in part for the costs of making the allegation.¹²⁷ The Ombudsman also may make recommendations of an “advisory nature” to the professional associations about their arrangements for the handling of complaints, and the professional associations are under an obligation “to have regard” to any such recommendation.¹²⁸ Finally, the Legal Services Ombudsman may refer matters to the Lord Chancellor’s Advisory Committee on Legal Education and Conduct, as part of the general duty to assist in the maintenance and development of standards in the education, training and conduct of those offering legal services.¹²⁹

5.136 In the English system, therefore, the powers of the Legal Services Ombudsman do not extend much beyond those of the Lay Observer proposed by the Law Society of New South Wales in its submission to the Commission on this reference.¹³⁰ That is, the English Legal Services Ombudsman is charged with reviewing the handling by the legal professional associations of complaints against lawyers, and making non-binding recommendations about particular cases and general issues.

5.137 By way of contrast, the jurisdiction of the Justice Ombudsman in Sweden is very wide - indeed, remarkably so for persons accustomed to the separation of powers doctrine and the primacy of the private legal profession found in common law countries such as Australia. The Justice Ombudsman has responsibility to ensure that the courts and administrative authorities observe Constitutional and administrative law requirements regarding “objectivity and impartiality and that the fundamental rights and freedoms of citizens are not encroached upon”.¹³¹ In order to carry out this function, the Justice Ombudsman has the right to attend any judicial or administrative proceeding, has access to all official files and documents, and can compel any official - including a judge - to cooperate in an investigation. The Justice Ombudsman’s chief weapon is the power to issue a public admonition; there is no direct power to overrule a decision of a public official or direct that any remedial action be taken.

5.138 The Justice Ombudsman’s writ extends to lawyers (and judges) to the extent that a very high proportion of lawyers in Sweden are found in the courts, the public prosecutor’s office, the public service, and other government or publicly-funded agencies. The processes for disciplining these lawyers are likewise to be found in public sector management practices rather than in the hands of private professional associations (as is typically the case in common law countries). Thus, the context of the regulation of lawyers in Sweden is quite different: most lawyers are found in the public sector, the judiciary is bureaucratically organised (as is the case in most of the civil law countries of Western Europe), and lay people commonly sit together with judges on courts and tribunals (in the absence of a jury system). In these circumstances, the Justice Ombudsman’s jurisdiction over lawyers and judges (and the apparent acceptance of this jurisdiction by lawyers and judges) is more explicable.

5.139 In this Option, the Commission envisages the role of the Legal Services Ombudsman in New South Wales as extending beyond the limited review function of the English counterpart, to include as well the responsibility for the initial intake, assessment and investigation of complaints. However, given the very different context, traditions and organisation of our legal profession and judiciary, the Legal Services Ombudsman should have no role in the review of the decisions of courts or tribunals, nor in the investigation of judicial officers.

The intake and investigation of complaints

5.140 As we stated in the discussion of Option One, the phases of initial intake, assessment and investigation of complaints are arguably the most important.¹³² We suggested above that the fact that complaints about lawyers currently must be made to the professional associations which represent the interests of lawyers created the suspicion of bias, and that the mechanism for receiving complaints thus should be made as separate and as independent from the profession as possible.¹³³ We also expressed some serious concerns about the adequacy (in terms of methodology) of investigations in general,¹³⁴ and about the substantial gap between the sort of conduct that clients commonly complain about and the sort of conduct which the professional associations treat seriously enough to prosecute through the formal disciplinary system.¹³⁵

5.141 To correct these problems, it is proposed in this Option that the Legal Services Ombudsman take over these functions. All complainants¹³⁶ would go to the independent Office of the Legal Service Ombudsman, which would: offer full assistance in the preparation of formal complaints; make the initial assessment of the complaints, culling those which are frivolous or vexatious or do not disclose relevant issues; divert the appropriate matters to mediation; and actively investigate those complaints which are to be pursued further, culminating in the production of a thorough dossier or report on the matter in question.

The hearing and determination of complaints

5.142 At this point, the work of the Legal Services Ombudsman would feed back into the existing disciplinary system, as modified by the suggestions the Commission has made in Option One. Having completed an investigation, the Legal Services Ombudsman would send the resulting report to the relevant professional Council, which would determine whether to dismiss the complaint, reprimand the legal practitioner involved, or refer the matter to the Legal Profession Standards Board or the Disciplinary Tribunal (or a merged body¹³⁷).

5.143 As the Law Society submitted¹³⁸ and the Commission proposed in Option One,¹³⁹ the Legal Services Ombudsman should be free to attend any Council meeting, dispute resolution meeting, disciplinary hearing or other related proceeding in order to satisfy himself or herself that the proceedings are conducted in a fair and effective manner.

External monitoring of the disciplinary system

Introduction

5.144 Under this proposal, the role and responsibilities of the Legal Services Ombudsman would re-emerge later in the disciplinary process as the external monitor of the integrity of the system.

Ombudsman to chair Review Panel

5.145 If a complainant is unhappy with the handling of his or her complaint by a Council, then he or she may apply for a review to the Legal Profession Conduct Review Panel, of which the Legal Services Ombudsman would be the Chairperson. The Review Panel should be able to consider not only matters which have been dismissed by the Councils, as at present, but also those which have resulted in a reprimand or other action short of referral to the Standards Board or the Disciplinary Tribunal. Complaints which have not been disposed of by the Council within six months of receipt would also be reviewable, as at present. However, it is unlikely that many matters for review would arise in this way, since most delays now come at the investigation stage rather than at the Council stage.

5.146 The Review Panel, as we proposed above, should have adequate powers and resources to investigate matters effectively, including by way of a hearing. At the conclusion of its deliberations, the Panel should then have the power to refer matters directly to the Standards Board or the Disciplinary Tribunal (or a merged body) if it is satisfied that the matter has not been handled properly by the relevant Council, or if the interests of justice so require.

5.147 The Review Panel should not have any power to review the particular decisions or determinations of the Standards Board or Disciplinary Tribunal (or any merged successor body), or of the courts.

Advisory powers

5.148 The Legal Services Ombudsman should be under a general duty to assist in the maintenance and enhancement of professional ethics and standards, and to this end should also liaise with other institutions providing education and training for persons supplying legal services (including para-professional services, such as conveyancing).

5.149 The Ombudsman also should be under a specific duty to promote community education and discussion about the legal profession and the legal system. This will involve promoting and conducting research; holding seminars, conferences and public meetings; publishing materials for public and professional use; utilising the media, and so on.

Reporting requirements

5.150 The Legal Services Ombudsman should be required to report annually to the New South Wales Parliament through the Attorney General, with such report to be tabled within 14 sitting days.

5.151 The Legal Services Ombudsman also should be required to report to the professional Councils at least once per year, but may do so more often. Portions of the report to a Council may be designated as confidential if, for example, this is appropriate to preserve the integrity of a current investigation.

Appointment and qualifications

Method of appointment

5.152 Without doubt, the Legal Services Ombudsman must actually be, and be seen to be, above partisan political and sectional interests. As with all statutory office holders, the formal appointment should be by the Governor in Council (that is, the Governor acting on the advice of the Cabinet), after nomination by the Attorney General. The position should first be advertised in the media to attract a suitable field of candidates.

5.153 In the discussion of the other Options, we proposed that the Legal Profession Advisory Council provided for in the Legal Profession Act 1987¹⁴⁰ should finally be established or, preferably, that the Commission’s earlier recommendation¹⁴¹ for the creation of a much more broadly constituted Public Council on Legal Services be implemented. The Public Council, with representation from different parts of the legal profession as well as from consumers and the general public, would be the ideal body to advise the Attorney General on the appointment of a Legal Services Ombudsman.

Qualifications

5.154 The threshold question is whether appointment to the office of Legal Services Ombudsman should be limited to persons without legal qualifications.

5.155 Prior to Legal Profession Act 1987, the Law Society of New South Wales operated a Lay Observer scheme for several years, in which a distinguished layperson monitored the complaints-handling process and reported to the Law Society. Under the Act, the Conduct Review Panel must be chaired by one of its lay members, who is appointed by the Attorney General.¹⁴² The Law Society’s submission to the Commission in this inquiry contains a major proposal to replace the Conduct Review Panel with a Lay Observer who has enhanced powers and resources.¹⁴³ In England and Wales, the legislation specifies that the Legal Services Ombudsman “shall not be an authorised advocate, authorised litigator, licensed conveyancer, authorised practitioner or notary”.¹⁴⁴

5.156 The main rationale for limiting the position to non-lawyers is that the external monitoring functioning is best performed by a person who is not, and would not be suspected of being partial to the interests of the legal profession.

5.157 The Commission agrees that the external monitor, whether a Legal Services Ombudsman or some other officer, must be free from any reasonable suspicion of bias (for or against the profession). However, it is less certain that the essential characteristic of independence means that anyone with legal qualifications automatically should be debarred from holding the office of Legal Services Ombudsman. Among practising lawyers, academic lawyers, magistrates, judges and non-practising lawyers (ie, those with legal qualifications who are working in management, banking, journalism and so on), there must be many persons with sufficient personal qualities of independence, fairness and integrity to warrant appointment. Conversely, among non-lawyers, there obviously will be many persons who would be inappropriately sycophantic, insensitive to the needs of consumers, or otherwise unsuitable for appointment.

5.158 The Commission believes there are some important advantages in having a Legal Services Ombudsman who understands the substance, context and procedures of legal practice. The process of appointment, discussed above, which involves consultation and careful consideration, should ensure that the particular person chosen has the attributes and community standing to be, and be seen to be, independent of the profession. If a lay person was appointed as the Legal Services Ombudsman, he or she should could, where appropriate, take legal advice from some perceptibly neutral lawyer, such as an academic lawyer or retired judge.

5.159 In this connection, the Commission notes that the Swedish Justice Ombudsman is usually an experienced (legally trained) judge, and that the “independent discipline monitor” in California, who reports annually to the State Legislature, is currently a law professor.¹⁴⁵

5.160 Further, the appointment of a Legal Services Ombudsman certainly will not affect the continued (indeed, the increased) involvement of lay participants in the rest of the disciplinary system. For example, there already is lay representation on the committees of the professional associations, on the Standards Board and Disciplinary Tribunal, and on the Conduct Review Panel.

Advantages and disadvantages

5.161 The main advantages of this Option are that it specifically addresses two of the most controversial phases of the system, and is calculated to ensure greater independence and accountability of the whole system, without requiring a radical restructuring of the existing system. It is not likely to be bureaucratic, expensive or “oppressive” (from the profession’s point of view). Having a high profile Legal Services Ombudsman, who could be involved in continuing and community legal education, would have positive effects in itself.

5.162 The major disadvantage is that it fails to address fully the third controversial phase of the existing system - the role of the professional Councils. This may be overcome, however, by the proposals we make in Option One to make the Councils more accountable, and by the strengthening of the external monitoring function (by the Legal Services Ombudsman and the Conduct Review Panel. As with Option Two, there may be some additional costs beyond those in the existing system in properly resourcing an Office of the Legal Services Ombudsman.

1. Submission of the New South Wales Bar Association, 20 February 1992, (hereafter, the “Bar Association submission”) p17.

2. Submission of the Law Society of New South Wales, 31 January 1992, (hereafter, the “Law Society submission”) para 30.

3. See New South Wales Law Reform Commission, Discussion Paper No 1: General Regulation (DP 1, 1979) at 29-31, 52, 86, 122-127, 136, 138, 149-152, 159, 166, and 185-187. These observations are not, of course, original to the Commission. See, for just one example in the wide literature in this area, B Abel-Smith and R Stevens, In Search of Justice (1968) 316.

4. Submission of the Lawyers Reform Association, 8 April 1992, at para 1.3. See also paras 2.5-2.7 and 3.1-3.7.

5. Legal Profession Act 1987 (NSW) s130(5). Unless otherwise indicated, all section references in this chapter refer to the Legal Profession Act.

6. According to figures supplied by the Law Society and Bar Association, about three-quarters of complaints against solicitors and two-thirds of complaints against barristers in 1990 came from members of the general public (mainly clients).

7. At 15.

8. See paras 4.24 et seq.

9. The Registrar of the Disciplinary Tribunal is also the Registrar of the Standards Board and the Conduct Review Panel.

10. See s51 regarding the powers of the Bar Council in this regard, and s54 regarding the powers of the Law Society Council.

11. Section 130(5).

12. See para 5.4, above.

13. Report of the Commission on Evaluation of Disciplinary Enforcement to the American Bar Association (May 1991) (hereafter, “ABA Report”), at iv.

14. See the discussion of the English system in Chapter 3.

15. Law Society submission, App 2, at 26-27.

16. Section 136.

17. Lay representation was increased in 1992 from one to two members, following advertisements for these positions.

18. Law Society submission, App 2, at 23. The Law Society expressed its figures in days (155, 161 and 140, respectively), which we have converted to months using a factor of 30.4.

19. Section 134(4).

20. Bar Association submission, at 4; Law Society submission, at 27.

21. See para 4.22

22. Solicitors’ (Professional Conduct and Practice) Rules (Vic) r6 requires within 14 days “a full and accurate account of the solicitor’s conduct in relation to the subject matter of the complaint, unless the solicitor has a sufficient and satisfactory reason for not furnishing an account thereof”.

23. The legislation will need to provide for sufficient discretion to cope with the normal events of life, such as illness, holidays, absence on circuit and so on.

24. Section 35(2)(c). The Legal Profession (Practising Certificates) Amendment Bill 1992, currently before the Parliament, would give the Bar Council the same powers as the Law Society Council in this regard. See also r67 of the NSW Bar Association Rules, which is set out in Chapter 4, fn 27, above.

25. Letter to the Commission of 16 March, 1992, from Mr Frederick Smith, Manager of the Law Society’s Professional Conduct Department.

26. The Legal Profession (Practising Certificates) Amendment Bill 1992, which is currently before Parliament, would achieve this result.

27. See New South Wales Law Reform Commission, The Legal Profession - Background Paper III (1980) at 51, Table 3.

28. Law Society Special Bulletin No 1 of 1979.

29. By the Legal Profession (Amendment) Act 1987, Sch 8. This change was urged by the Law Society.

30. Section 123.

31. Law Society submission, App 2, at 9 and 11-12. This was comprised of 1189 complaints received by the Law Society under s130, and 56 investigations commenced by the Law Society Council on its own motion. According to separate figures supplied by the Law Society to the Commission, a total of 820 solicitors were complained about in 1990, with 182 solicitors attracting multiple complaints, and 168 complaints against firms rather than individual solicitors.

32. Figures supplied by the Bar Association.

33. See the Submission of the NSW Combined Community Legal Centres, 28 February, 1992. (Hereafter, the “Community Legal Centres submission”.) This submission makes a similar point, noting (at 1) that in its particular experience the principal sources of client dissatisfaction are costs, poor communications, failure to be kept informed of the progress of their cases, and unwillingness to undertake or continue with Legal Aid Commission-funded work.

34. Re Moulton [1981] 2 NSWLR 736.

35. Section 130(1).

36. See paras 4.28-4.42, above.

37. See paras 4.36-4.42, above.

38. The Professional Conduct Department is divided into three sections: Complaints, Litigation and Ethics. At least six of the staff are located in the Complaints section.

39. Section 136. The presiding member of the committee, at least, must be a Council member for the delegation to be effective.

40. New South Wales Law Reform Commission, Complaints, Discipline and Professional Standards - Part 1 (DP 2, 1979) para 3.64.

41. DP 2, at paras 3.76-3.83.

42. Section 134.

43. In the case of the smaller number of complaints against barristers, the Bar Council has told the Commission that its position is to refer equivocal cases to the Board or Tribunal for determination.

44. There about 55,000 solicitors in England and Wales. In New South Wales, there were 11,428 solicitors in July 1991. The 1989 lawyer-to-population ratio in England and Wales was 1:950; in NSW it was 1:557.

45. See Part 5 of the Medical Practitioners Act 1938 (NSW), ss 39 et seq.

46. Section 35(2)(c). Only the Law Society Council has this power at present, although pending amendments would afford this power to the Bar Council as well. See also r67 of the NSW Bar Association Rules.

47. Sections 32 and 35. NB: Just prior to the publication of this Discussion Paper, the Legal Profession (Practising Certificates) Amendment Bill 1992 received its first and second readings in State Parliament. The Bill would amend these sections to provide for the imposition of certain conditions on a barrister’s practising certificate.

48. Under s35(2)(c) the Law Society Council may refuse to issue, suspend, or cancel, a solicitor’s practising certificate, for failure to give a satisfactory explanation to the Council after having been required to explain specified conduct. The Bar Council does not have the equivalent power at present, although the Legal Profession (Practising Certificates) Amendment Bill 1992 would amend s35 to this effect. See the preceding footnote. See also r67 of the NSW Bar Association Rules.

49. Section 135.

50. Under s134(1)(b)(ii).

51. Bar Association submission, at 12.

52. Section 134(1)(b).

53. See s149.

54. Section 134.

55. Section 135.

56. See paras 4.50-4.53, above, regarding “The question of open justice”.

57. Section 134(1)(b) and (1A). The Council must be satisfied that “the legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner”. This is the disciplinary equivalent of a s556A discharge in the criminal process. The significance of the finding may be lost on complainants, however.

58. See the discussion below under “The possible merger of the Board and Tribunal” regarding the under-utilisation of these bodies, especially the Standards Board.

59. Because of the much smaller number of cases involved, this is less likely to happen to complaints against barristers, which receive individual attention at the PCC and Bar Council stages.

60. Sections 49 and 52.

61. Section 53 permits the Attorney General to direct the Councils to include lay representatives on their committees, but not exceeding 25% of a committee’s membership. The reporting implication derives from the requirements under ss 49 and 52 to detail the composition of committees.

62. Section 57.

63. Section 171.

64. Section 171(1).

65. The last Annual Report of the Law Society examined by the Commission is for the year 1990-1991. The Complaints Committee material appears on the top of p11.

66. At pp 28-30.

67. See New South Wales Bar Association, 55th Annual Report, for 1991 (1991), at pp 17-21.

68. See Part 9 of the Act in respect of “Unqualified Practitioners”.

69. The Law Society Council’s powers also extend to “any other improper conduct” besides professional misconduct, and to solicitors’ clerks, under s54(a)(1)-(2).

70. Bar Association submission, at 13-14.

71. Or a dismissal by one of the complaints committees acting under the delegated authority of a Council.

72. Section 126.

73. Sections 137 and 141.

74. Law Society submission, at para 9.

75. See the discussion of this proposal at paras 5.89-5.92, below.

76. See now Sch 4, cl 3A of the Legal Profession Act 1987.

77. Schedule 4, cl 3A.

78. Section 139(3).

79. Courts and Legal Services Act 1990 (UK) s19.

80. Section 139.

81. Again, only reviews of matters involving solicitors have taken place to date, because of the Bar Council’s position on the release of files to the Review Panel. It is interesting to note, however, that the Bar Association’s “Explanatory Brochure for Persons Lodging Complaints Against Barristers” states that the Panel “has the power only to review the material on the Association’s file; it may not take fresh evidence.” [Emphasis supplied.]

82. Schedule 4, cl 10.

83. Under s139.

84. See the Compensation Court Act 1984, s36(1).

85. Watson v Hanimex Colour Services Pty Ltd (unreported) NSW Court of Appeal, 28 November 1991, CA 40277/90; CC 6630/89. See also Schweppes Limited v Archer (1934) 34 SR (NSW) 178 at 183.

86. Courts and Legal Services Act 1990 (UK), s19.

87. Courts and Legal Services Act 1990 (UK), s21.

88. Section 139(2).

89. Section 140(2).

90. Cf ss 137(1) and 140(2).

91. Section 141.

92. Section 126(2)(c). Schedule 4, cl 2(1), originally provided that the person must be under 70 years of age, but this has been repealed.

93. Section 168.

94. See section 67.

95. Law Society submission, at para 10.10.

96. Bar Association submission, at 17.

97. See paras 4.104-4.114, above.

98. Law Society submission, at para 10, pp 4-5. The proposal only deals with relationship between the Lay Observer and the Law Society. There is no discussion of whether the same Lay Observer should also have responsibility for complaints against barristers.

99. Bar Association submission, at 17.

100. The Complaints Unit briefs counsel to appear for it, using the Crown Solicitor’s Office as the instructing solicitor.

101. Complaints about doctors go to the (Medical) Professional Standards Committees and the Medical Tribunal under the Medical Practitioners Act 1938 (NSW). Registration of doctors is in the hands of the Medical Board. There are similar but separate Boards, Standards Committees, and Tribunals which hear complaints against the other categories of health care professionals. Dentists, however, are not covered by the Complaints Unit.

102. The Complaints Unit pays for these peer assessments at the rate of $135 per hour, but some of the Colleges and individual doctors waive this fee.

103. Public officials and public servants in New South Wales including lawyers are, of course, subject to regulation by the Ombudsman, the Independent Commission Against Corruption, and other regulatory agencies.

104. While the Health Complaints Unit started in this manner, for historical rather than policy reasons, the clear lesson from this experience is that a fully independent commission is preferable, if not inevitable.

105. Although mediation and conciliation sessions should be accorded absolute privilege to promote full and frank discussion without prejudice to subsequent civil or disciplinary proceedings, it is still preferable to separate the investigative and prosecutorial functions of the Complaints Commission from the disposition of complaints. The proposed Health Care Complaints Commission will send matters appropriate for dispute resolution to the Department of Health’s Health Conciliation Registry.

106. See, eg, Part 5 of the Medical Practitioners Act 1938 (NSW).

107. See Law Society of New South Wales v Weaver [1977] 1 NSWLR 67, esp at 74-75 per Street CJ, and at 76 per Moffitt P.

108. The situation in New South Wales is somewhat different, however. In the other states, the Director is appointed by the Commission. In NSW, under the Legal Aid Commission Act 1979 (NSW), the Attorney General makes this appointment and the Commission has no role. Under the Act the Director is accountable to the Attorney General, but the Director’s employment agreement specifies that the Director undertakes to implement the policies of the Commission.

109. Independent Commission Against Corruption Act 1988 (NSW) ss 4-6 and 107. (Hereafter, the "ICAC Act”.) Under s104, the Commission may employ a Director of Operations, a Director of Administration and other senior support staff.

110. Sections 58-62 of the ICAC Act.

111. Sections 63-72 of the ICAC Act.

112. See paras 5.116-5.117.

113. Section 58 and Sch 3.

114. New South Wales Law Reform Commission, First Report on the Legal Profession: General Regulation and Structure (LRC 31, 1982) para 6.22.

115. According to its Annual Report 1990, at 44, the Health Complaints Unit was the subject of 13 complaints in the preceding year, made to a variety of different bodies, such as the Ombudsman’s Office, the Consumer Advisory Committee, the Medical Defence Union and the Royal Australian College of Surgeons. Ten of the complaints were not substantiated, while three remain under consideration.

116. See para 3.193, above.

117. For example, a single Complaints Commission would effectively replace (for the purposes of handling complaints): the Law Society’s Community Assistance and Professional Conduct Departments, Complaints Committee, and Council, and the Bar Association’s Professional Affairs Director, four Professional Conduct Committees and Council.

118. Submission of the Australian Consumers’ Association, 23 December 1991, at 1-2. (Hereafter, the “ACA submission”.) The ACA supports “an independent complaints and compensation mechanism”, with an Ombudsman slightly preferred to a Complaints Unit.

119. The Community Legal Centres submission, at 3-4, proposes the establishment of an independent “Complaints Board”.

120. Submission of the New South Wales Council for Civil Liberties Inc, 21 February 1992, at 1 (“NSWCCL submission”).

121. Lawyers Reform Association submission, at paras 1.6 and 4.3.

122. Bar Association submission, at 16-17.

123. There is an Ombudsman, in this sense, in New South Wales as well as for the Commonwealth. See, eg, the Ombudsman Act 1974 (NSW).

124. This is a voluntary scheme developed (in the face of calls for legislation) and funded by the Australian Bankers Association. It is modelled, to some extent, on the English Banking Ombudsman. See G Burton, “A Banking Ombudsman for Australia” (1990) 1 Journal of Banking and Finance Law and Practice 29-55, and JG Starke, “Establishment of a non-governmental national banking ombudsman system” (1989) 63 Australian Law Journal 454-456.

125. Courts and Legal Services Act 1990 (UK) s22.

126. Courts and Legal Services Act 1990 (UK) s25.

127. Courts and Legal Services Act 1990 (UK) s23(2).

128. Courts and Legal Services Act 1990 (UK) s24.

129. Courts and Legal Services Act 1990 (UK) s24.

130. Law Society submission, at 3-5.

131. A Wigelius, “The Ombudsman and the Judiciary” (unpublished manuscript, nd). The Commission wishes to thank Mr John Hatton, MP, for providing us with the material on the Ombudsman system in Sweden.

132. See paras 5.7 et seq, above.

133. See paras 5.17-5.20, above.

134. See paras 5.44-5.52, above.

135. See paras 5.29-5.38, above.

136. That is, individual complainants. The Law Society and Bar Councils should still be able commence investigations and disciplinary proceedings on their own initiative.

137. See paras 4.43-4.49, above.

138. Law Society submission, at 3-5.

139. See para 5.93, above.

140. Section 58 and Sch 3.

141. LRC 31, at para 6.22.

142. Section 126(3).

143. Law Society submission, at 3-5.

144. Courts and Legal Services Act 1990 (UK) s18(5).

145. See the discussion of the Californian system in Chapter 3.